PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [PULASKI
COUNTY CIRCUIT COURT NO. 60CR-07-1305]
Timothy Mack Clemmons was found guilty of multiple counts of
unlawful discharge of a firearm from a vehicle for firing
shots at the home of his ex-girlfriend, one of which severely
injured a child. He was sentenced to a total of 864
months' imprisonment, which included a term of 96 months
imposed as a firearm enhancement. The Arkansas Court of
Appeals affirmed. Clemmons v. State, 2010 Ark.App.
810. Now before this court is Clemmons's pro se
application to reinvest jurisdiction in the trial court to
consider a petition for writ of error coram nobis.
petition for leave to proceed in the trial court is necessary
because the trial court can entertain a petition for writ of
error coram nobis after a judgment has been affirmed on
appeal only after we grant permission. Roberts v.
State, 2013 Ark. 56, at 11, 425 S.W.3d 771, 778. A writ
of error coram nobis is an extraordinarily rare remedy.
Id. Coram nobis proceedings are attended by a strong
presumption that the judgment of conviction is valid.
Id.; Westerman v. State, 2015 Ark. 69, at
4, 456 S.W.3d 374, 376. The function of the writ is to secure
relief from a judgment rendered while there existed some fact
that would have prevented its rendition if it had been known
to the trial court and which, through no negligence or fault
of the defendant, was not brought forward before rendition of
the judgment. Roberts, 2013 Ark. 56, at 11, 425
S.W.3d at 778. The petitioner has the burden of demonstrating
a fundamental error of fact extrinsic to the record.
writ is allowed only under compelling circumstances to
achieve justice and to address errors of the most fundamental
nature. Id. A writ of error coram nobis is available
for addressing certain errors that are found in one of four
categories: (1) insanity at the time of trial, (2) a coerced
guilty plea, (3) material evidence withheld by the
prosecutor, or (4) a third-party confession to the crime
during the time between conviction and appeal. Id.;
Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
evidence adduced at Clemmons's trial demonstrated that
five shots were fired at the home of his ex-girlfriend
immediately after they had been engaged in an angry telephone
conversation. The telephone call ended upon the shots being
fired, and Clemmons did not call back or answer his telephone
when called. The investigating officers discovered four shell
casings in the street outside his ex-girlfriend's home.
An eyewitness testified that the shots were fired from a dark
car with tinted windows that was parked at the side of the
house and that sped off afterward. Based on statements given
to investigators by his ex-girlfriend, officers went to
Clemmons's home where they found that his car, a black
Honda Accord with tinted windows, was still warm to the
touch, and after searching that car, investigators discovered
a shell casing on the floorboard behind the driver's
seat. A ballistics expert testified that the shell casing
found in Clemmons's car had been fired from the same gun
as the casings found in the street outside the home of his
ex-girlfriend. In addition, the ballistics expert testified
that live ammunition found in Clemmons's garage matched
the shell casings found at the scene and in his car. The
court of appeals found that the above-cited evidence
substantially supported the conviction. Clemmons,
2010 Ark.App. 810, at 2-3.
direct appeal, Clemmons argued, among other things, that
conflicts in statements provided by investigators
demonstrated that the consent to search his vehicle and
premises was invalid. Based on a de novo review of the
evidence supporting the validity of the search, the court of
appeals held that the consent was voluntary and was not the
product of coercion or duress. Id. at 4.
pro se petition for coram nobis relief, Clemmons makes
numerous conclusory allegations that investigators,
particularly Officer Brewer, gave false and misleading
testimony to the court and to the jury. Specifically,
Clemmons contends that Brewer's testimony that a shell
casing was discovered in Clemmons's car and that the hood
of his car was warm to the touch was fabricated. Clemmons
further asserts that statements from investigating officers
describing events surrounding Clemmons's consent to a
search were contradictory and unbelievable.
extent that the allegations concerning the veracity of the
testimony provided by investigating officers, including
Officer Brewer, are intended as a claim that the evidence was
insufficient to sustain the judgment, issues concerning the
sufficiency of the evidence or the credibility of witnesses
are issues to be addressed at trial. Sims v. State,
2012 Ark. 458, at 3 (per curiam). Challenges to the
sufficiency of the evidence are not cognizable in coram nobis
proceedings. Ventress v. State, 2015 Ark. 181, at 6,
461 S.W.3d 313, 317 (per curiam). This court has held that a
petitioner's allegation that a witness gave false
testimony at trial does not give rise to a showing of
fundamental error that requires issuance of the writ.
Evans v. State, 2016 Ark. 377, at 6-7, 501 S.W.3d
819, 823 (per curiam); see also Wallace v. State,
2015 Ark. 349, at 12, 471 S.W.3d 192, 200 (per curiam). A
coram nobis proceeding is not a means merely to contradict a
fact already adjudicated in the trial court. See
Stenhouse v. State, 2016 Ark. 295, at 4, 497 S.W.3d 679,
682 (per curiam).
also contends that his right to a speedy trial was violated
in that he was brought to trial two years after his arrest.
An alleged speedy-trial violation is not a defect sufficient
to void a judgment. Franklin v. State, 2015 Ark.
455, at 2-3, 476 S.W.3d 786, 787 (per curiam) (citing
State v. Wilmoth, 369 Ark. 346, 351, 255 S.W.3d 419,
423 (2007)). We have specifically held that the mere
assertion that the petitioner was denied a speedy trial is a
claim of trial error, and, thus, it is not cognizable in a
coram nobis proceeding. Franklin, 2015 Ark. 455, at
2-3, 476 S.W.3d at 787. By its very nature, a question of
trial error could have been settled at trial and on the
record on direct appeal. Id. For that reason,
allegations of trial error, even if of constitutional
dimension, are not within the purview of a coram nobis
Clemmons insists that police withheld evidence that was
favorable to the accused; that the prosecutor knowingly used
perjured testimony; that the prosecutor withheld discoverable
material, including the conflicting and "staged
testimony" of Officer Brewer; that the trial court erred
by allowing the admission of conflicting testimony and
committed plain error by allowing Brewer to give false
testimony regarding Clemmons's consent to search; and
that the trial court refused to allow Clemmons the
opportunity to challenge discrepancies in witness testimony.
While Clemmons alleges that investigators as well as the
prosecutor withheld favorable evidence, he fails to identify
the specific nondisclosed evidence to which he refers.
Clemmons also asserts that the prosecutor knowingly presented
false testimony. Failure to disclose evidence favorable to
the defense is a violation of Brady v. Maryland, 373
U.S. 83 (1963), and such an allegation falls within one of
the four categories of coram nobis relief. However, this
court is not required to take claims of a Brady
violation in a coram nobis petition at face value without
substantiation. Ventress, 2015 Ark. 181, at 5, 461
S.W.3d at 316-17. The application for coram nobis relief must
make a full disclosure of specific facts relied upon.
Id. Clemmons's unsupported allegations that
investigators and the prosecutor failed to disclose favorable
evidence does not establish that the alleged withheld
evidence meets the threshold requirements of a Brady
violation in that it was both material and prejudicial such
as to have prevented rendition of the judgment had it been
known at the time of trial. Id. (citing
Strickler v. Greene, 527 U.S. 263, 280 (1999)).
petitioner's burden to demonstrate that there is a
reasonable probability that the judgment of conviction would
not have been rendered, or would have been prevented, had the
information been disclosed at trial. Id. Clemmons
offers no factual substantiation that material exculpatory
evidence that would have prevented the rendition of the
judgment had been withheld and has likewise failed to offer
any substantiation of his other contention that the
prosecutor suborned perjury. Again, assertions with no
factual support do not justify reinvesting jurisdiction in
the trial court to consider a petition for writ of error
coram nobis. Ventress, 2015 Ark. 181, at 5, 461
S.W.3d at 316-17. With respect to Clemmons's ...